What Happens In Mediation?


by Forrest (Woody) Mosten

October 2000

Forrest (Woody) Mosten

"Of those that reached agreement in Mediation, two thirds of both men and women agreed that spousal support was fair; and more than two thirds of both men and women were satisfied with the division of property."

Divorce Mediation: Characteristics of Clients and Outcomes
Dr. Joan Kelly and Lynn Gigly (1989)

Unlike open court proceeding where we can see how our colleagues try cases, mediation is usually conducted behind the privacy of closed doors.

This chapter will attempt to walk you through some of basic steps of mediation to provide an overview of the structure to fill in your understanding of what happens during the mediation process. You will learn what your clients will be experiencing, what to expect yourself if you will be attending the session as a consulting attorney and get a head-start to your training should you decide to try being a mediator yourself. I shall take you behind the closed doors of my office to give you a view of what happens when I mediate as one illustration of how the process works.

First Contact with the Mediator by the Participants:

People approach mediators in three basic ways.

  • They agree to start and make the approach jointly or agree to have one spouse make the initial phone call.
  • One party decides to mediate, initiates contact, and works out with the mediator how to involve the other party; and
  • The parties are referred by a court, agreement of counsel, or other organization or third party.
What Goes on in the First Phone Call:

I try to limit the first call to answering questions about the process in general and will expressly discourage specific substantive or factual discussion about the caller's own situation. This is especially true when one party is calling. If the caller is certain about starting to mediate, I set an appointment and arrange for a packet of mediation materials to be sent out to each party. I will also request that the caller promise to call the other party confirm the appointment and ask the other party to call me to have a similar phone chat. These calls are usually limited to five minutes or less and, of course, are without charge.

If the calling party is unsure about setting an appointment, I offer to send out a mediation packet. I always try to ascertain if the calling party is sure that the non-calling party wants to receive a packet. I do not wish to send unrequested or unwanted materials.

Some mediators hold more extensive telephone calls in order to have a more comprehensive assessment as to suitability or appropriateness of starting mediation before the parties come in for an appointment. Others will initiate contact with the non-calling party to initiate the mediation.

Pre-Meeting Mediation Minuet

After the calls and packets are sent, my Dispute Resolution Assistant follows up to make sure packets are received and works out the scheduling of the 30 minute orientation. My Assistant calendars the meeting, confirms the appointment the day before, and arranges cancellations and rescheduling, (which are common.) Parties are invited to come into the client library to read or look at videos in anticipation of their first visit--See Chapter 5. If parties cancel twice, I am alerted and I will generate a quick call to each party to inquire about underlying problems that may account for the cancellation. I do the same if one or both parties do not show up for the appointment (which is less common.) I do not require parties to send any information to me before the first meeting. If the meeting is set at short notice, parties are requested to come 30-60 minutes early to read the mediation articles generally, and to review the mediation agreement with particular care.

Lawyers will often want to interview me separately or together and work out a format before clients are referred to me. Fifty percent of my family mediations have lawyers present at the session; the percentage is much higher for commercial and other civil disputes resolved in mediation.

The initial orientation meeting is limited to 30 minutes, for which I do not charge a fee. All other interviewing or orientation time is charged. Some mediators offer more free time and others charge for the orientation meeting which may range from 30 minutes to three hours or more.

Orientation Session

Before the parties arrive, I arrange for the exact number of chairs to be at the round table placed at equal distance, in the shape of a triangle. Water, coffee, and a filled up candy bowl are arranged in the Mediation Room. Prior white board and window writing (See Chapter 5 for Mediation Friendly Office) are erased and other client work is put away. Important phone calls are made or deferred -- no phone calls are permitted to interrupt any mediation session, except Class 10 Emergencies or my daughter calling to tell me she missed her car pool!

The first party arriving is offered the choice to wait in the reception area or the client library. The second party is offered the remaining choice and is informed that the other party is present. Sometimes the parties will choose to sit together to wait for the appointment. If I am walking through the office I may greet the first party to arrive but will not invite anyone into the mediation room until all the parties have arrived. I will not go beyond a "Hello, It's a Beautiful Day" greeting. My neutrality and the parties' perception of that impartiality are agreement catalysts and may themselves hold a difficult mediation together.

I personally go out to the waiting room, greet each by first names (including lawyers) and use my first name. On the walk into the office I try not to have any dialogue and wait until everyone is seated and finished shuffling their papers and moving coffee cups before starting to speak.

As in all stages of mediation, I try to speak in everyday language with a positive and warm tone (regardless of how I am feeling.). I try read the mood of the participants. I begin by explaining the following:

  • The time limit of 30 minutes;

  • There is no charge

  • The purpose of orientation is to inform them and answer question about the mediation process--not to negotiate anything. The one major exception to this rule is that I often need to mediate allocation and method of payment--the one area in which I am in a conflict of interest position with my mediation clients.

  • Give the parties a choice to determine how to start: by asking me questions or have me give a 5-10 minute overview of how the mediation process will work. Prospective clients are increasingly becoming more sophisticated in shopping for a mediator. They will often ask astute detailed questions about my mediation process and how it compares with other mediators they have interviewed.

  • Review the parties'completed form: Indicators that Mediation is Appropriate. Some mediators have absolute rules deeming certain types of clients or situations innappropriate for mediation. For example, families who have a recent history, or ongoing family violence or child abuse may be considered inappropriate for mediation. I find that the difficult cases (hiding assets, denying access or abducting children) pose real and difficult problems. These tough cases have lower rates of success, are more expensive, and can have legal side effects such as delay in getting an enforceable court orders. However, the tough cases are also the litigation nightmares. Mediation can provide many of the benefits to these troubled people that are set out in the next chapter. Mediator vigilence must be increased and often the process may need to accomodate special needs (separate meetings when there is ongoing violence or immediate interim court orders reflecting agreements in volatile financial and parenting situations.) I may require the presence of consulting counsel before initiating these difficult mediations. I find the Indicator form to be a useful tool to have the parties participate in their own assessment process to determine their suitability for mediation.

  • Prepare parties to fasten their seat belts. Despite being preferable to litigation, mediation can be a wild ride. It is important to have low expectations and high hopes. The parties need to be ready for the bumps and smooth them out rathen than give up on the process.

  • Discuss use and selection of consulting attorneys. The choice of a mediation friendly and competent attorney may be the key to a mediation's success. I stress the importance of involving lawyers early in the process and I explain how I work with lawyers as collaborative allies for settlement. If requested, I will provide names of lawyers who have successful participated in previous mediations. Approximately once per year, I have a request to have me participate in comparative interviewing of prospective consulting lawyers and will do so with the express agreement of both parties. In such situations, I accompany the party to the prospective lawyer's office, act as a scrivener and observer, and debrief my observations with the client after the interviews are completed. The clients must make the selection of attorneys on their own. However, I can help the client articulate concerns think through how each lawyer meets those needs and concerns. Few people know how to shop for a lawyer, even fewer are savy in selecting a mediation friendly lawyer. However, having the mediator involved in attorney selection is time consuming and expensive. It is only utilized when finanances are available. Otherwise, resources should be allocated for the mediation itself and for payment of attorneys, however selected by the parties;

  • Discuss the mediation agreement which should have been reviewed by the parties before the orientation. I might raise key issues for discussion (confidentiality, impartiality, payment) and entertain the parties' questions. A sample agreement is provided at the end of this chapter. If ready to commence the process, I have the parties sign and initial each page and any modification requested by either party and agreed to by both parties and me. Such modifications are more frequent as clients and lawyers are becomming increasingly knowledgeable about mediation.

  • Discuss costs and arrange finances. I generally estimate one additional hour for each session to prepare summary letters or other correspondence, handle telephone calls from parties, counsel and third parties, or review documents. I estimate 3-4 hours of time to draft the final agreement and to prepare all of the court document, more time if there are significant revisions or renegotiation . See Chapter 18 for drafting issues. The two variables that effect the ultimate cost of a mediation are the complexity of the legal and financial issues plus the difficulty of the emotional/communication dynamics of the parties. On average single-issue mediations take 3-8 hours (plus inital private sessions) and comprehensive mediations average 10-25 hours (plus private sessions and drafting).

  • Deposits are generally very low, covering 3-6 hours of anticipated time. Since mediation can be terminated unilaterally by either party at any time, I prefer parties not to be intimidated by a high financial entry barrier and be encouraged to test out the process. The deposit is replenishable so that it is applied to the last billing and parties pay monthly charges as they accrue. Non-payment is a rare occurance for all the reasons of client satisfaction and lower costs discussed in Chapter 4.

  • Set up future separate session appointments of 90 minutes with each party and several joint sessions are pencilled in to secure their place on my calendar. Sessions cancelled more than 24 hours in advance are not charged. Joint sessions are 2-3 hours with parties alone and 4-5 hours when counsel are present. I usually meet once per week but will adjust the timing to reflect the parties' emotional state, stage of separation, and desire or pressures for closure. Weekly meetings also give me an opportunity to draft my summary letters before the next meeting. By reviewing the letters several days before the next session, they can enhance reflection on unresolved issues, permit parties to do homework, and to consult with their respective lawyers, therapists or other professionals. Twice weekly sessions is the absolute maximum as parties get emotionally drained, people have busy schedules, and I need time for other families who have ongoing mediations. When parties are in a hurry to finish due to an impending court date or other reason, I often recommend the full day single session format described in Chapter 15.

If parties show any hesitation at all about commencing the mediation, I recommend that they take time to think about it and arrange a time for them to call my Dispute Resolution Assistant. I write a short follow-up letter, (sample at the end of the chapter) often enclosing additional material deemed relevant by the orientation. Parties are offered an opportunity for another assessment session (on the clock) and often couples will come in one, two, or more times before initiating the process. It is not uncommon for parties to return to start mediation months or years after their initial orientation -- often after they have had a taste of the adversary court system.

Initial Private Sessions :

As discussed in Chapter 15, I have found meeting individually with parties to be helpful in establishing rapport and trust, understanding their factual situations and emotional concerns, and helping them each prepare for the joint sessions. I try to leave at least 2 days between the last individual session and the first joint session to let the parties reflect on what we discussed and to act on any suggestions I might make for them to adequately prepare factual material, think through proposals, or work on communication hotspots. While my agreement requires parties to waive confidentiality of these separate meetings, in reality, parties (often at my suggestion) disclose the most sensitive concerns to the other party on their own. The waiver of confidentiality is to bolster the parties' trust and perception of my neutrailty to prevent the possibility that I will be told about a secret Swiss bank account or plans to abduct and I would withhold it from the other side. Generally, parties with such agendas and plans don't tell me regardless of the rule on confidentiality. If both parties agree that they would prefer private meeting to be confidential in order to increase their comfort level, I will honor this proposed modification to my standard agreement. In situations which would threaten the integrity of the process, I would withdraw and terminate the mediation rather than hold on to a secret that could hurt the other party or child(ren).

At the end of the first private session, I personally walk out with the client to the elevator and wait with the client until the elevator arrives.

First Joint Session :

After greeting the parties and acknowledging that we are all back together for the first time since the orientation, I try to find positive aspects to report from the individual sessions. At the very least, I can say I was able to get to know each party better and have a more rounded sense of the issues and dynamics present in the mediation.

I invite any questions or concerns that either party may have arising from the private session concerning the process and confirm the schedule of future appointments.

As in every session, I ask the parties if there is any issue that either feels must be resolved by the end of that session. If an issue is raised, I ask if the parties want to deal with it right away or reserve time at the end of the session. It is very frustrating for the parties (and for me) for a timebomb issue (not enough money to last the week) to be raised during the last five minutes of a session. With rare exceptions, even if I do not have clients booked directly after, I end the session at the scheduled time to accomodate any plans either party (or attorney) might have after the session and to set appropriate boundaries. Actually I try build in 15-30 minutes between sessions to answer phone calls, review letters, meet with my Dispute Resolution Assistant, prepare for the next session, eat, and basically relax from the tension of the previous session.

Typical Divorce Agenda:

After dealing with immediate hot issues, I work with the parties to establish an agenda. In a comphrensive mediation, a customary agenda may be:

  • Personal Conduct and separation issues such as agreements regarding sexual contact (between the parties or third persons), physical separation of the households (who will move and when), how to live together in the same home, physical safety, diminishing emotional emeshment such as repeated and lenghy telephone calls, derogatory remarks, handling relationshps with extended family and friends, and other issues and concerns raised by the parties;
  • How the parties will handle negotiation of issues outside of sessions in my office, and regarding which issues and in what format will such out of session discussion take place.
  • Immediate issues concerning time share of the children;
  • Immediate issues concerning support, payment of current debts, and managment of assets;
  • Decision making over issues involving the children and labeling legal custody
  • Time sharing of the children including a school schedule, holidays, vacations and special days;
  • Allocating assets and debts
  • Permanent child and spousal support;
  • Miscellaneous issues such as filing taxes, insurance, filing court documents and ancillary documents such as deeds, partnership resignatins, QDROS for retirement vehicles, etc.
The parties and I start working issue by issue and building the overall agreement step by step. Success is incremental and I try to recognize even the smallest indications of agreement and overlook many of the set backs. My belief in the eventual full agreement plays an important role in building an agreement.

Discussion and Bargaining Format:

At the beginning of the session, I generally spell out the following process for discussion of any issue:

  • Party A identifies issue to be discussed;
  • Party A articulates concerns about the issue without interruption;
  • Mediator helps Party A elaborate or more effectively discuss concerns;
  • Mediator checks with Party B to make sure Party B understands Party A's Concerns;
  • Party B asks questions or clarification and responds to Party A's Concerns;
  • Mediator summarizes Party A's concerns and party B's responses;
  • Mediator works with both parties to explore options to meet A's concerns factoring in B's response;
  • From the options generated, mediator helps Party A formulate a proposal for agreement -- Party A may request separate time with mediator to do so;
  • Party A presents the proposed agreement to Party B;
  • Party B asks questions and clarifications;
  • Party B can either accept the proposal in full, in part, or indicate concerns leading to a counter-proposal. Party A can request separate time with the mediator before responding.

If Party B chooses to make a counter-proposal, the process starts over with the parties reversing roles.

This process is repeated again and again and again throughout the mediation -- on issues, large and small. It may take just minutes to resolve several issues or multiple sessions to resolve major issues such as the amount, length, and conditions of permanent spousal support.

Experiment and Test Out Solutions:

Mediation allows parties to experiment and test out agreements without fear of establishing a binding legal precedent. Agreements can be time limited and reviewed within days or weeks for viability. Agreements can also be modified as new agreements are made which impact . I reassure the parties that there is no final binding agreement until all the parts are cross-stiched into a whole written agreement subject to review and final signatures. However, if parties choose to make incremental final agreements on bifurcated issues, that process option is available to them.

Agreements can be specific or general, depending on the parties and issues involved. At the end of the session, time is left to review progress, plan for homework, set target dates, and leave the session in a positive relaxed manner with as much closure as possible. Parties can either leave together or I will orchestrate separate departures to avoid intimidation or innapropriately continuing the discussions in the waiting room or elevator.

Subsequent Sessions:

Each session starts with my asking about any developments since the last session that require immediate attention.

I review the summary letter. In some mediations, it is read aloud by the parties. Any corrections or additions are solicited and incorporated in the next letter.

Continue on with the agenda developed in the previous session(s), modifying it as appropriate. Work on one issue at a time until all issues are resolved. At times, it may be necessary to link issues and ask the parties to think about an overall solution dealing with all remaining issues.

Often, I will raise issues that parties have overlooked or about which they are unfamiliar. Many of these issues involve preventive planning for the future. See Chapter 19.

The number of sessions and length of time from orientation session to completed agreement vary. Some comprehensive mediations are totally resolved in one two hour joint session. My record-setting couple has now elapsed 8 years since reaching an agreement in principle but never signed the final documents (the Marital Status was dissolved over 7 years ago; Husband has remarried and has two new children and Wife has been in a cohabitation relationship for over 4 years!)

The agenda of issues may evolve so that a concern that is raised at the first joint session may be resolved informally by the parties or simply go away. Other resolved issues may be subject to extensive renegotiation due to a change of heart by one or both parties, input from consulting attorneys, or changed due to the impact of issues subsequently decided. I often caution parties about the frequency of renegotiation before it actually happens in order to preempt reactions of betrayal or disappointment when one party wants to renogotiate and the other party feels it's a done deal. Such reactions could put a mediation at risk. I have found that most mediations do not terminate unsuccessfully due to the substantive issues involved. Rather, an unexpected bump or curve occurs that frightens or angers one or both parties that causes a lack of confidence in the mediation process resulting in one or both parties believing that a tough lawyer or judge can make it all better. I try to have the parties ready for such bumps and curves and to patiently (with great struggle) handle them when (not if) they occur.

Use of Experts:

Parties are in control of deciding whether outside experts are needed. They can choose to each employ experts or to have a joint neutral expert work for the parties. Experts can be interviewed by the parties in their offices or in mediation session. I often will help the parties work out agreements as to the scope of an expert's services and a joint position for negotiating fees as well as the how each party will be involved in the expert's work.

Involvement of Children:

Children generally do not participate in negotiation and bargaining stages of mediation. However, they often have concerns and reactions that affect their parents which impacts the mediation. Parents are given the opportunity to bring the children to our client library (See Chapter 5) to watch videos (particularly "Children in the Middle" and "You're Still Mum and Dad") browse through the children's books on divorce). They are also given an opportunity to meet with me. The parents decide whether siblings should come in together or separately and/or whether the parents should also be present. I agree with John Haynes that the children must want to be present and that they are not to be given the impression that they are responsible for the decisions being made nor do they have the power to veto or alter their parent's agreements. I differ with Haynes in that I do not condition the children meeting me on a prior agreement by the parties that they are willing to modify their agreement to accommodate the children's concerns.

I try to give the children reassurance that their parents are choosing the peaceful an less destructive option of mediation, in large part because their parents love them. Often by meeting me and actually sitting in the mediation room and the client library, children fill in their concrete reality of what is happening at the mediation which can help ameliorate fears and concerns that had been previously been raging.

In the case of many older adolescents and adult children, parents choose to have them sit at the mediation table and participate as important (if not equal) parties or as resources for their needs and desires (which are important to their parents) or about factual matters such as the operation of the family business or investments. On several occasions, an older child has served as my co-mediator without portfolio and was very helpful in diffusing conflict and creating an agreement for their parents.

Finalizing the Agreement:

Parties are given the choice of having one of their lawyers draft the final agreement and court documents or to have me do it. Actually, I generally write one last summary letter and my partner or associate drafts the agreement based on the letters in order to reduce costs. Parties usually prefer to have us draft the agreement due to our neutrality. See Chapter 18 for discussion on the involvement of lawyers in the review and drafting process.

Implementing and Modifying the Agreement:

The parties often agree to return to mediation before seeking court relief in the future. Emergencies are excluded from this requirement. Parties can also build in reviews and assessment procedures ( e.g.automatic yearly exchange of income information and review of support in mediation each year prior to June 15). See Chapter 19 for steps that I utilize in mediation to prevent future conflict and to maintain the legal health of the family.

As indicated in the Abacus of Variables, mediation can be customized to have many formats. There are a number of factors that influence how a mediation is set up. Such factors include time available, cost, hostility and accessibility of a meeting room. Mediators themselves differ widely in their approaches and their styles. I have been a member of a Mediation Study Group (See Chapter 14) for many years. The group members include lawyer mediators, therapist mediators, court mediators, and lay mediators. Every mediator practices at least some aspects of the mediation craft differently than I do. Lawyer mediators themselves vary greatly in practice approach and style.

As a family lawyer who wishes to advise and represent clients in mediation, it is important to understand the different approaches and help your client select an appropriate format for the situation at hand.

THE MEDIATION ABACUS*

ABACUS OF VARIABLES TO BE DECIDED UPON FOR EACH MEDIATION

TherapeuticJust Facts and Law
Co-MediatorSole Mediator
Same GenderDifferent Genders
No intake process with individualsLengthy Intake process
No intake contact / documentationLengthy Intake contact/ documentation
No consulting lawyersEach side has consulting lawyers required
No lawyers at sesstionsLawyers present at all times
No solutions suggested by mediatorSolutions suggested at mediator's initiative
Memorandum of Understanding / No binding document Signed detailed Binding Agreements and court orders
Multiple meetings of short durationSessions of 1/2 to full days or longer
Voluntary ParticipationCourt order requiring Mediation attendees
Private Meetings during process (caucus)No private meetings during process. All joint sessions

Some Factors which influence variables: 1) Cost; 2) Time available to parties; 3) Time available to mediator; 4) Degree of Hostility; 5) Wishes of parties; 6) Educational level of the parties; 7) Inequality of bargaining power; 8) Facilities accessible to mediators; 9) Training of mediators; 10) Lack of or adherence to a theoretical framework

* Adapted J. Wade and S. Gribben, from J. Wade, Mediation - "The Terminological Debate" (1994) 5ADRJ 204 in Laurence Boulle.

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Biography




Forest (Woody) Mosten

  • In law practice since 1972 and practicing mediation since 1979. 
  • Founding partner of Jacoby and Meyers in charge of litigation.
  • Assistant Regional Director, Federal Trade Commission.
  • Law Professor and Director of Clinical Education, Mercer Law School.
  • Adjunct Faculty:  UCLA School of Law; Pepperdine School of Law ADR Program, University of Southern California School of Law, University of San Diego School of Law, Whittier School of Law
  • 1999 Peacemaker of the Year, Southern California Mediation Association.
  • Los Angeles County Bar Conflict Prevention Award.
  • President’s Award, Beverly Hills Bar Association.
  • American Bar Association Legal Access Award, Meritorious Distinction.
  • Author: Books on mediation and lawyering published by the American Bar Association: The Complete Guide to Mediation (1997) and Unbundling Legal Services (2000).
  • Other books: Operating a Profitable Mediation Practice (1998) and Mediation Career Guide (Jossey Bass, Fall 2001).
  • Mediation Trainer and  Conference Presenter: Conducts training courses from basic to advanced for professionals and organizations. Keynote presenter for National Unbundling Conference (2000), Advanced Family Law Conference, Australia (1993), Mediation Conference London England (2000) and conferences in throughout the United States
  • Present institutes and workshops world-wide on mediation skills and strategies, working with lawyers in complex matters, and developing a mediation practice.


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Website: www.mostenmediation.com

Additional articles by Forrest (Woody) Mosten



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